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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Aug 03 2009, 9:15 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

ATTORNEY FOR APPELLEE: STEVEN E. RIPSTRA Jasper, Indiana

IN THE COURT OF APPEALS OF INDIANA

STATE OF INDIANA, Appellant-Plaintiff, vs. JONATHAN DANT, Appellee-Defendant.

) ) ) ) ) ) ) ) )

No. 19A05-0903-CR-147

APPEAL FROM THE DUBOIS SUPERIOR COURT The Honorable Donald G. Hendrickson, Senior Judge Cause No. 19D01-0801-CM-33

August 3, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary The State appeals the trial courts ruling granting Johnathan Dants motion to suppress. We reverse. Issue The State raises one issue on appeal, which we restate as whether the trial courts order granting Dants motion to suppress was contrary to law. Facts While on patrol on January 13, 2008, Officer Alan Foy of the Jasper Police Department observed Dant make a "wide and fast" left hand turn. Tr. p. 5. Although Foy did not initiate a traffic stop, the nature of the turn prompted him to follow Dant. Dant properly performed two additional turns but failed to properly signal a subsequent turn into a Circle A gas station. Using that failure as probable cause, Foy activated his lights, followed Dant into the gas station, and parked immediately behind him. After approaching Dant, Foy detected the odor of alcohol, prompting him to initiate an operating while intoxicated ("OWI") investigation. Foy conducted three field sobriety tests and administered a portable breath test ("PBT"). Dant failed two of the three field tests and tested at .095 on the PBT. Foy advised Dant of his implied consent rights and placed him under arrest. During a search of Dants person, Foy found a rolled mariju ana cigarette and a plastic bag containing marijuana inside a cigarette pack. Dant later tested at .08 on a Data Master.

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Dant was charged with Class A misdemeanor operating a vehicle while intoxicated, two counts of Class C misdemeanor operating a vehicle while intoxicated, and Class C misdemeanor possession of marijuana. Dant moved to suppress all the evidence, alleging that the traffic stop was illegal. After conducting a hearing, the trial court granted Dants motion. The State now appeals. Analysis The State argues that the trial courts order granting Dants motion to suppress is contrary to law. When appealing from a suppression motion, the State is appealing from a negative judgment. State v. Lefevers, 844 N.E.2d 508, 512 (Ind. Ct. App. 2006). "The State, therefore, must show that the trial courts ruling on the suppression motion was contrary to law." Id. When reviewing a trial courts ruling suppressing evidence, we determine "whether the record discloses ,,substantial evidence of probative value that supports the trial courts decision." State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). We will not reverse unless the "evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court." Lefevers, 844 N.E.2d at 512. "We neither reweigh the evidence nor judge the credibility of witnesses and must consider only the evidence most favorable to the judgment." Id. The State argues that Foys traffic stop was lawful. We agree. The

uncontroverted evidence shows that Dant failed to signal before turning into the gas station. A drivers duty to properly signal before commencing a turn is statutorily 3

imposed. See Ind. Code

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